Atteberry v. Powell

Soott, Judge, delivered the opinion of the court. The object of the present practice act was to introduce truth and simplicity in pleadings. The act requires that the pleadings should be verified by affidavit. This requirement must necessarily exclude inconsistent answers. As an answer in justification of a charge for slander must admit the speaking of the slanderous words, the defendant can not deny and justify the speaking of words at the same time. To be satisfied of this, it would seem only to be necessary to place [433] the two answers in juxtaposition. Under the old system the speaking of the slanderous words might be denied in one plea and justified in another, but that can not now be permitted. What were consistent or inconsistent pleas under the old practice, where the pleadings were not required to be verified, is a very different question from what are consistent or inconsistent answers under the practice now' prevailing, where all -the pleadings are required to be sworn to. The statute allows different consistent defences to be separately stated in the same answer. (R. C. 1855, art. 6, § 14.) In New York, whence our practice act comes, there is a diversity of opinion in the courts on this question. The weight of reason is with those who hold that the answers are inconsistent; and it is observable that those who maintain that the two answers may be made, are silent as to the requirement of a verification of the pleadings. The general issue is now abolished, and a defendant under it can not show that the words were not maliciously spoken, or did not amount to slander. But where the words are of such a character, he may in such a case state the circumstances under which they -were spoken in order to show the want of malice, and in that way may defend the action. Mitigating circumstances serve only to reduce the damages ; they can not therefore constitute a defence to the action ; and whenever they are set up it must be in connection with an answer to the action, and the pleader should state that they are in mitigation of damages, as otherwise, not amounting to an answer', the court would be warranted in striking them out, as not knowing for what purpose they were intended. The parties can not expect to obtain an advantage by evasive pleading. If the pleading is insufficient, it ought to be disposed of before going into trial. A defendant can not put in an answer insufficient as a justification, and expect to treat it as such when it suits his purpose, and then be permitted to deny it when it is his interest to do so. An answer merely stating that the words spoken are true is insufficient as a justification; it should state the facts which go to con [434] stitute the crime or offence '¡imputed, so that an issue of either law or fact may be framed. An answer justifying the speaking of the words must confess the speaking. (Yoor-hies’ Prac. 206.) Indeed the failure or neglect of the inferior courts to comply with the plain requirements of the statute renders it almost impossible to do any thing with the practice act now in force. Each party moves on confident of success, and it is not until his case is lost that he awakes to the great irregularities of the pleadings. The law requires that, when the allegations or denials of a pleading are so indefinite or uncertain that the precise nature of the charge or denial is not apparent, and when they fail in any other respect to conform to the requirements of the law, the court may require the pleading to be made certain and definite and otherwise to conform to the law by amendment. (R. C. 1855, p. 12, 36, art. 6, § 31.) This case seems to fall within the principle of those in which it has been held that in an action for slander, where the declaration averred that the plaintiff was foresworn without showing how, it was determined that this defect was aided by a plea of justification which alleged that the plaintiff had taken a false oath at the sessions. (Drake v. Cordery, Cro. Cas. 288; Chitty’s Plead. 671.) This principle, it seems, is still applicable under the present practice. (Ayres v. Covill, 18 Barb. 260.) Errors were committed pending the trial, which will make it necessary to reverse this judgment. In whatever light the pleadings are viewed the difficulty presents itself. If the case is considered as standing on the answer in justification, then all evidence offered in proof of the answer was excluded by the court, an error that can not be surmounted. We may not understand the bill of exceptions, for, without any hesitancy, it may be pronounced one of the worst prepared papers that was ever presented; and if those obtaining judgments will suffer the judge to sign such papers, they must take the consequences. The bill of exceptions, as it appears to us, does furnish evidence conducing to show the truth of [435] the slander. If we read it correctly, it seems that the land entered by Tinsley did not corner with the lands he held by preemption; that the one was three quarters of a mile from the other. "Why did the court set aside the order allowing Tinsley to enter the land ? There was evidence that Atte-berry knew that another claimed the land. In the case of Berry v. Dryden, 7 Mo. 324, the court said “ the slander proved must substantially correspond with that charged in the declaration.” In the first instruction given by the court at the instance of the plaintiff, the jury is told that “ if the defendant spoke and published the slanderous words mentioned in the first count-in the petition, or spoke or published the same in substance, intending thereby,” &c. These words “ in substance” were objectionable by themselves without further explanation. The language this or any other court may use in expressing its opinions is not always appropriate in an instruction to the jury. Opinions are usually addressed to and intended for the scientific. If the court saw proper to use the words “ substantially” or “ in substance” in speaking of the proof of the slander charged, it should have gone further, and stated, as was done in Berry v. Dryden, what idea the law attached to those words in connection with that subject.- There is no phrase more likely to mislead a jury than to tell them that if the slander-' ous words are “ in substance” proved-the action is sustained. The ordinary acceptation of the words is widely variant from the sense in which they are used by the courts in speaking of the proof of the slanderous words charged in a petition. Reversed and remanded.